[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

the work of these lawyers “with that group that exist for the primary purpose of financial
gain through the recovery of counsel fees.” 4
Commercial Speech The middle column of the table includes a line of cases like Went For
It, in which commercial, rather than political speech, is at stake. Here, the speech proposes
a purely commercial transaction that justifies a different level of constitutional scrutiny.
Thus, a substantial, rather than compelling, governmental interest, must be shown to
uphold the regulation. Further, the regulation need not be the least restrictive means of
promoting the governmental interest so long as it directly and materially advances the
interest and is narrowly drawn. Prior restraints (such as requiring a bar ethics opinion
before releasing an advertisement) 5 are allowed. Further, to prevent fraud, states can require
lawyers to add disclaimers to their communications, such as “Advertising Material.” 6
Finally, an overbreadth analysis is not available to challenge every conceivable application of
the regulation because the commercial motive makes such speech likely to recur. 7
This extensive line of cases means that states cannot completely prohibit advertising but
can regulate it to prevent false, fraudulent, or misleading statements. RMJ and Shapero
made clear that “advertising” includes targeted mail as well as mass media communications.
Peel addressed claims of certification in a letterhead, holding that states could not
categorically ban lawyers from honestly advertising a certification granted by a national
organization, but they were free to prevent potentially misleading certifications from private
organizations by creating official state specialty designations. 8 In the context of a partial,
time-based prohibition, Went For It adds the protection of personal privacy and, where
empirical evidence exists, the reputation of the profession as justifiable state interests.
Unprotected Speech The right column of the table refers to one case, Ohralik, in which the
Court held that one form of lawyer speech — in-person solicitation for pecuniary gain — is
unprotected by the First Amendment. When lawyers seek employment by speaking face to
face with potential clients, the state may presume harm to prevent it. Unlike media
advertising, the pressure of in-person solicitation often demands an immediate response,
not leaving the recipient free to evaluate the speech. The evils of fraud, undue influence,
intimidation, and overreaching in such a circumstance can be presumed as so likely to
occur that the state can prohibit all in-person solicitation by lawyers to prevent them. No
actual injury need be shown to justify a complete ban on speech in this circumstance. 9
Although it is now clear that the First Amendment applies to lawyer advertising and
solicitation, some issues remained unresolved. The Supreme Court has not yet addressed
radio and television or e-mail, but the Model Rules include them in the advertising
category. 10 On the other hand, because it demands a more immediate response similar to
in-person solicitation, real-time electronic or telephone contact is included in the ban on
solicitation in Model Rule 7.3. 11 The West Virginia opinion which follows assumes that
online live chats and comments to individual posts probably qualify as solicitation. Future
developments in electronic and social media contact will necessitate continued attention to
475